The second day of the trial began promptly when Mr. Justice Hodson took
his seat. Mr. Holymead's opening statement to the jury was brief. He
reminded them that the life of a fellow creature rested on their verdict.
If there was any doubt in their minds whether the prisoner had fired the
shot which killed Sir Horace Fewbanks the prisoner was entitled to a
verdict of "not guilty." It was obligatory on the prosecution to prove
guilt beyond all reasonable doubt.
He submitted that the prosecution had not established their case. After
hearing the case for the prosecution the jury must have grave doubts as
to the guilt of the prisoner, and it was his duty as Counsel for the
prisoner to put before the jury facts which would not only increase their
doubts but bring them to the positive conclusion that the prisoner was
not guilty. He was not going to attempt to deny that the prisoner went to
Riversbrook on the night of the murder. He went there to commit a
burglary. But so far from Hill being terrorised into complicity in that
crime it was he who had first suggested it to Birchill and had arranged
it. Material evidence on that point would be submitted to the jury.
Hill was a man who was incapable of gratitude. His disposition was to
bite the hand that fed him. After being well treated by Sir Horace
Fewbanks he had made up his mind to rob him as he had robbed his former
master Lord Melhurst. He knew that Sir Horace had quarrelled with this
girl Fanning because of her association with Birchill, and he went to
Birchill and put before him a proposal to rob Riversbrook. Birchill
consented to the plan, and when on the night of the 18th August he
broke into the house he found the murdered body of Sir Horace in the
library. That was the full extent of the prisoner's connection with
the crime. To the superficial and suspicious mind it might seem an
improbable story, but to an earnest mind it was a story that carried
conviction because of its simple straightforwardness--its crudity, if
the jury liked to call it that. It lacked the subtlety and the finish
of a concocted story. The murder took place before Birchill reached
Riversbrook on his burglarious errand.
"It is my place," added Mr. Holymead, in concluding his address, "to
convince you that my client is not guilty, or, in other words, to
convince you that the murder was committed before he reached the house.
It is only with the greatest reluctance that I take upon myself the
responsibility of pointing an accusing finger at another man. In crimes
of this kind you cannot expect to get anything but circumstantial
evidence. But there are degrees of circumstantial evidence, and my duty
to my client lays upon me the obligation of pointing out to you that
there is one person against whom the existing circumstantial evidence is
stronger than it is against my client."
Crewe, who had secured his former place in the gallery of the court,
looked down on the speaker. He had carefully followed every word of
Holymead's address, but the concluding portion almost electrified him. He
flattered himself that he was the only person in court who understood the
full significance of the sonorous sentences with which the famous K.C.
concluded his address to the jury.
As his eyes wandered over the body of the court below, Crewe saw that
Mrs. Holymead and Mademoiselle Chiron were sitting in one of the back
seats, but that they were not accompanied by Miss Fewbanks. It was
evident to him by the way in which Mrs. Holymead followed the proceedings
that her interest in the case was something far deeper than wifely
interest in her husband's connection with it as counsel for the defence.
Leaning forward in her seat, with her hands clasped in her lap, she
listened eagerly to every word. During the day his gaze went back to her
at intervals, and on several occasions he became aware that she had been
watching him while he watched her husband.
The first witness for the defence was Doris Fanning. The drift of her
evidence was to exonerate the prisoner at the expense of Hill. She
declared that she had not gone to Riversbrook to see Hill after the final
quarrel with Sir Horace. Hill had come to her flat in Westminster of his
own accord and had asked for Birchill. She went out of the room while
they discussed their business, but after Hill had gone Birchill told her
that Hill had put up a job for him at Riversbrook. Birchill showed her
the plan of Riversbrook that Hill had made, and asked her if it was
correct as far as she knew. Yes, she was sure she would know the plan
again if she saw it.
The judge's Associate handed it to Mr. Holymead, who passed it to
the witness.
"Is this it?" he asked.
"Yes," she replied emphatically, almost without inspecting it.
"I want you to look at it closely," said Counsel. "When Birchill showed
you the plan immediately after Hill's departure, what impression did you
get regarding it?"
She looked at him blankly.
"I don't understand you," she said.
"You can tell the difference between ink that has been newly used and ink
that has been on the paper some days. Was the ink fresh?"
"No, it was old ink," she said.
"How do you know that?"
"Because ink doesn't go black till a long while after it is written. At
least, the letters _I_ write don't." She shot a veiled coquettish glance
at the big K.C. from under her long eyelashes.
The K.C. returned the glance with a genial smile.
"What do you write your letters on, Miss Fanning?"
She almost giggled at the question.
"I use a writing tablet," she replied.
"Ruled or unruled?"
"Ruled. I couldn't write straight if there weren't lines." She
smiled again.
"And what colour do you affect--grey, rose-pink or white paper?"
"Always white."
"Is that all the paper you have at your flat for writing purposes?"
"Yes."
"Then what did Birchill write on when he wanted to write a letter?"
"He used mine."
"Are you sure of that?"
"Yes. When he wanted to write a letter he used to ask me for my tablet
and an envelope. And generally he used to borrow a stamp as well." She
pouted slightly, with another coquettish glance.
"Look at that plan again," said the K.C. "Have you ever had paper like it
at your flat?"
She shook her head.
"Never."
"Have you ever seen paper of that kind in Birchill's possession before he
showed you the plan?"
"Never."
"When he showed you the plan had the paper been folded?"
"Yes."
The K.C. took the witness, now very much at her ease, to the night of the
murder. She denied strenuously that Hill tried to dissuade Birchill from
carrying out the burglary because Sir Horace Fewbanks had returned
unexpectedly from Scotland. It was Birchill who suggested postponing the
burglary until Sir Horace left, but Hill urged that the original plan
should be adhered to. He declared that Sir Horace would remain at home at
least a fortnight, and perhaps longer. His master was a sound sleeper, he
said, and if Birchill waited until he went to bed there would be no
danger of awakening him. She contradicted many details of Hill's evidence
as to what took place when the prisoner returned from breaking into
Riversbrook. It was untrue, she said, that there was a spot of blood on
Birchill's face or that his hands were smeared with blood. He was a
little bit excited when he returned, but after one glass of whisky he
spoke quite calmly of what had happened.
The next witness was a representative of the firm of Holmes and Jackson,
papermakers, who was handed the plan of Riversbrook which Hill had drawn.
He stated that the paper on which the plan was drawn was manufactured by
his firm, and supplied to His Majesty's Stationery Office. He identified
it by the quality of the paper and the watermark. In reply to Mr. Walters
the witness was sure that the paper he held in his hand had been
manufactured by his firm for the Government. It was impossible for him to
be mistaken. Other firms might manufacture paper of a somewhat similar
quality and tint, but it would not be exactly similar. Besides, he
identified it by his firm's watermark, and he held the plan up to the
light and pointed it out to the court.
Counsel for the defence called two more witnesses on this point--one to
prove that supplies of the paper on which the plan was drawn were issued
to legal departments of the Government, and an elderly man named Cobb,
Sir Horace Fewbanks's former tipstaff, who stated that he took some of
the paper in question to Riversbrook on Sir Horace's instructions. And
then, to the astonishment of junior members of the bar who were in court
watching his conduct of the case in order to see if they could pick up a
few hints, he intimated that his case was closed. It seemed to them that
the great K.C. had put up a very flimsy case for the defence, and that in
spite of the fact that the prosecutor's case rested mainly on the
evidence of a tainted witness Holymead would be very hard put to it to
get his man off.
"Isn't my learned friend going to call the prisoner?" suggested Mr.
Walters, with the cunning design of giving the jury something to think of
when they were listening to his learned friend's address.
"It's scarcely necessary," said Mr. Holymead, who saw the trap, and
replied in a tone which indicated that the matter was not worth a
moment's consideration.
He began his address to the jury by emphasising the fact that a fellow
creature's life depended on the result of their deliberations. The duty
that rested upon them of saying whether the prosecution had established
beyond all reasonable doubt that the prisoner shot Sir Horace Fewbanks
was a solemn and impressive one. He asked them to consider the case
carefully in all its bearings. He could not claim for his client that
he was a man of spotless reputation. The prisoner belonged to a class
who earned their living by warring against society. But that fact did
not make him a murderer. On what did the case for the prosecution rest?
On the evidence of Hill and three other witnesses who, on the night of
the murder, had seen a man somewhat resembling the prisoner in the
vicinity of Riversbrook, or making towards the vicinity of that house.
But so far from wishing to emphasise the weakness of identification he
admitted that the prisoner went to Riversbrook with the intention of
committing a burglary.
"We admit that he went there the night Sir Horace Fewbanks returned from
Scotland," he continued. "Counsel for the prosecution will make the most
of those admissions in the course of his address to you, but the point to
which I wish to direct your attention is that we make this damaging
admission so that you may decide between the prisoner and the man who
led him into a trap by instigating the burglary. Now we come to the
evidence of Hill. I know you will not convict a man of murder on the
unsupported evidence of a fellow criminal. But I want to point out to you
that even if Hill's evidence were true in every detail, even if Hill had
not swerved one iota from the truth, there is nothing in his evidence to
lead to the positive conclusion that the prisoner murdered Hill's master,
Sir Horace Fewbanks. What does Hill's evidence against the prisoner
amount to? Let us accept it for the moment as absolutely true. Later on I
will show you plainly that the man is a liar, that he is a cunning
scoundrel, and that his evidence is utterly unreliable. But accepting for
the moment his evidence as true the case against the prisoner amounts to
this: by threats of exposure Birchill compelled Hill to consent to
Riversbrook being robbed while the owner was in Scotland.
"Hill's complicity, according to his own story, extended only to
supplying a plan of the house and giving Birchill some information as to
where various articles of value would be found. On the 18th of August
Hill went to Riversbrook to see that everything was in order for the
burglary that night. While he was there his master returned unexpectedly.
Hill then went to the flat in Westminster and told Birchill that Sir
Horace had returned. His own story is that he tried to get Birchill to
abandon the idea of the burglary, but that Birchill, who had been
drinking, swore that he would carry out the plan, and that if he came
across Sir Horace he would shoot him. What grudge had Birchill against
Sir Horace Fewbanks? The fact that Sir Horace had discarded the woman
Fanning because of her association with Birchill. Gentlemen, does a man
commit a murder for a thing of that kind?
"Let us test the credibility of the man who has tried to swear away the
life of the prisoner. You saw him in the witness-box, and I have no doubt
formed your own conclusions as to the type of man he is. Did he strike
you as a man who would stand by the truth above all things, or a man who
would lie persistently in order to save his own skin? That the man cannot
be believed even when on his oath has been publicly demonstrated in the
courts of the land. The story he told the court yesterday in the
witness-box of his movements on the day of the murder is quite different
to the story he told on his oath at the inquest on the body of Sir Horace
Fewbanks. Let me read to you the evidence he gave at the inquest."
Mr. Finnis handed to his leader a copy of Hill's evidence at the inquest,
and Mr. Holymead read it out to the jury. He then read out a shorthand
writer's account of Hill's evidence on the previous day.
"Which of these accounts are we to believe?" he said, turning to the
jury. "The latter one, the prosecution says. But why, I ask? Because it
tallies with the statement extorted from Hill by the police under the
threat of charging him with the murder. Does that make it more credible?
Is a man like Hill, who is placed in that position, likely to tell the
truth, the whole truth, and nothing but the truth? It is an insult to the
jury as men of intelligence to ask you to believe Hill's evidence. I do
not ask you to believe the story he told at the inquest in preference to
the story he told here in the witness-box yesterday. I ask you to regard
both stories as the evidence of a man who is too deeply implicated in
this crime to be able to speak the truth.
"I will prove to you, gentlemen of the jury, that the man is a criminal
by instinct and a liar by necessity--the necessity of saving his own
skin. He robbed his former master, Lord Melhurst, and he planned to rob
his late master, Sir Horace Fewbanks. But knowing that his former crime
would be brought against him when the police came to investigate a
robbery at Riversbrook he was too cunning to rob Riversbrook himself. He
looked about him for an accomplice and he selected Birchill. You heard
him say in the witness-box that he drew Birchill a plan of
Riversbrook--the plan I now hold in my hand. I will ask you to inspect
the plan closely. Hill told us that Birchill terrorised him into drawing
this plan by threats of exposure. Exposure of what? His master, Sir
Horace Fewbanks, knew he had been in gaol, so what had he to fear from
exposure? His proper course, if he were an honest man, would have been to
tell his master that Birchill was planning to rob the house and had
endeavoured to draw him into the crime. But he did nothing of the kind,
for the simple reason that the plan to rob Riversbrook was his own, and
not Birchill's.
"Now, gentlemen, you have all seen the plan which this tainted witness
declares was drawn by him because Birchill terrorised him and stood over
him while he drew it. Is there anything in that plan to suggest that it
was drawn by a man in a state of nervous terror? Why, the lines are as
firmly drawn as if they had been made by an architect working at his
leisure in his office. Was this plan drawn by a man in a state of nervous
terror with his tormentor standing threateningly over him, or was it
drawn up by a man working at leisure, free not only from terror but from
interruption? The answer to that question is supplied in the evidence
given by three witnesses as to the paper used. Hill says the plan was
drawn at the flat. Two other witnesses swore that it was paper supplied
exclusively for Government Departments, and another witness swore that he
had taken such paper to Riversbrook for the use of Sir Horace Fewbanks,
who, like every one of His Majesty's judges, found it necessary to do
some of his judicial work at home. What is the inevitable inference? I
ask you if you can have any doubt, after looking at that plan and after
hearing the evidence given to-day about the paper, that the proposal to
rob Riversbrook was Hill's own proposal, that Hill drew a plan of the
house on paper he abstracted from his master's desk--paper which this
confidential servant was apparently in the habit of using for private
purposes--and that he gave it to Birchill when he asked Birchill to join
him in the crime?
"When one of the main features of Hill's story is proved to be false, how
can you believe any of the rest? In the light in which we now see him,
with his cunning exposed, what significance is to be attached to his
statement that Birchill in his presence threatened to shoot Sir Horace
Fewbanks if the master of Riversbrook interfered with him? Such a threat
was not made, but why should Hill say it was made? For the same reason
that he lied about the plan--to save his own skin. I submit to you,
gentlemen, that when Hill went to see Birchill at the Westminster flat on
the night arranged for the burglary Sir Horace Fewbanks was
dead--murdered--and that Hill knew he was murdered. His own story is that
he tried to persuade Birchill to abandon the proposed burglary, but,
according to the witness Fanning, he did all in his power to induce
Birchill to carry out the original plan when he saw that Birchill was
disposed to postpone the burglary in view of the return of the master of
Riversbrook. Why did he want Birchill to carry out the burglary? Because
he knew that his master's murdered body was lying in the house, and he
wanted to be in the position to produce evidence against Birchill as the
murderer if he found himself in a tight corner as the result of the
subsequent investigations of the police. Remember that the body of the
victim was fully dressed when it was discovered by the police, and that
none of the electric lights were burning. Does not that prove
conclusively that the murder was not committed by Birchill, that Sir
Horace Fewbanks was dead when Birchill broke into the house?
"Birchill, an experienced criminal, would not break into the house while
there was anybody moving about. He would wait until the house was in
darkness and the inmates asleep. To do otherwise would increase
enormously the risks of capture. But the fact that the police found the
body of the murdered man fully dressed shows that Sir Horace was murdered
before he went to bed--before Birchill broke into the house. It shows
conclusively that the murder was committed before dusk. Your only
alternatives to that conclusion are that the murdered man went to bed
with his clothes on, or that the murderer broke into the house before Sir
Horace had gone to bed and after killing Sir Horace went coolly round the
house turning out the lights instead of fleeing in terror at his deed
without even waiting to collect any booty. I am sure that as reasonable
men you will reject both these alternatives as absurd. No evidence has
been produced to show that anything has been stolen from the place. It
was evidently the theory of the prosecution that the prisoner, after
shooting Sir Horace, had fled. The evidence of Hill was that he arrived
at Fanning's flat in a state of great excitement. His excitement would be
consistent with his story of having discovered the body of a murdered
man, but not consistent with the conduct of a cold-blooded calculating
murderer who had broken into the house before Sir Horace had undressed
for bed, had shot him, and had then gone round the house turning out the
lights without having any apparent object in doing so.
"Gentlemen, I think you will admit that the crime must have been
committed before dusk; before any lights were turned on. I do not ask you
to say that Hill is guilty. The responsibility of saying what man other
than the prisoner shot Sir Horace Fewbanks does not rest with you. But I
do urge you to ask yourselves whether, as between Hill and the prisoner,
the probability of guilt is not on the side of this witness who lied to
the coroner's court about his movements on the night of the murder, and
who lied to this court about the plan for the robbery of Riversbrook. I
have shown you that Hill was the master mind in planning the burglary,
and, that being so, would not Birchill have consented to the postponement
of the burglary if Hill had urged him to do so when he visited the flat
after the unexpected return of the master of Riversbrook? Is not the
evidence of the witness Fanning, that Hill urged Birchill to carry out
the burglary after Sir Horace had gone to sleep, more credible than
Hill's statement that he endeavoured to induce Birchill to abandon the
proposed crime? Knowing what you know of Hill's past as a man who will
rob his master, knowing that he attempted to deceive you with regard to
this plan of Riversbrook in order that you might play your part in his
cunning scheme, I urge you to ask yourselves whether it is not more
probable that Hill fired the shot which killed Sir Horace Fewbanks than
that the prisoner did so. Is it not extremely probable that the
unexpected return of Sir Horace upset Hill, who was giving a final look
round the house before the burglary took place? That, instead of
answering his master with the suave obsequious humility of the
well-trained servant, he revealed the baffled ferocity of a criminal
whose carefully arranged plan seemed to have miscarried; that his master
angrily rebuked him, and Hill, losing control of himself, sprang at Sir
Horace, and the struggle ended with Hill drawing a revolver and shooting
his master?
"The rest of the story from that point can be constructed without
difficulty. The murderer's first thought was to divert suspicion from
himself, and the best way to do that was to divert suspicion elsewhere.
He locked up the house and went to see Birchill. He urged Birchill to
break into Riversbrook, in which the dead body of the murdered man lay.
It is true that he need not have told Birchill that Sir Horace had
returned unexpectedly; but his object in doing so was to make Birchill
search about the house until he inadvertently stumbled across the dead
body. Had Birchill been under the impression that he had broken into an
entirely empty house he would have collected the valuables and might not
have entered the library in which the dead body lay. It was necessary
for Hill's purpose that Birchill should come across the corpse; then he
would be vitally interested in diverting suspicion from himself
(Birchill) and that is why he cunningly revealed to Birchill that Sir
Horace had returned. I put it to the jury that such is a more probable
explanation of how Sir Horace met his death than that he was shot down
by Birchill. I ask you again to remember that the body was fully dressed
when it was found by the police. I put it to you that in this matter the
prisoner walked into a trap prepared by his more cunning fellow
criminal. And I urge you, with all the earnestness it is possible for a
man to use when the life of a fellow creature is at stake, not to be led
into a trap--not to play the part this cunning criminal Hill has
designed for you--in the sacrifice of the life of an innocent man for
the purpose of saving himself from his just deserts. Looking at the
whole case--as you will not fail to do--with the breadth of view of
experienced men of the world, with some knowledge of the workings of
human nature, with a natural horror of the depths of cunning of which
some natures are capable, with a deep sense of the solemn responsibility
for a human life upon you, I confidently appeal to you to say that the
prisoner was not the man who shot Sir Horace Fewbanks, and to bring in a
verdict of 'not guilty.'"
A short discussion arose between the bench and bar on the question of
adjourning the court or continuing the case in the hope of finishing it
in a few hours. Sir Henry Hodson wanted to finish the case that night,
but Counsel for the prosecution intimated that his address to the jury
would take nearly two hours. As it was then nearly five o'clock, and His
Honour had to sum up before the jury could retire, it was hardly to be
hoped that the case could be finished that night, as the jury might be
some time in arriving at a verdict. His Honour decided to adjourn the
court and finish the case next day.